For most of American history, the Second Amendment of the United States Constitution was not considered an individual right. States and the federal government enacted restrictions on who could possess firearms without considering whether these laws violated the rights of an individual to bear arms in self-defense. However, over the past fifteen years, the legal landscape has begun to shift dramatically after the Supreme Court determined in District of Columbia v. Heller that the right to bear arms was an individual right, unconnected to serving in a well-regulated militia.
In the years following Heller, lower courts struggled to analyze statutes under this interpretation of the Second Amendment and began to apply a balancing test which combined a historical analysis of gun regulations with a means-end analysis. Under this ‘intermediate scrutiny’, most existing gun laws were upheld.
But, in June of 2022, the United States Supreme Court explicitly rejected this ‘intermediate scrutiny’ test that lower courts had developed in New York State Rifle & Pistol Association Inc. v. Bruen. The 6-3 Bruen majority found that to be constitutional under the Second Amendment, the government bears the burden of demonstrating that any firearm regulation is consistent with the Nation’s historical tradition of firearms regulation. The Court found that New York’s century-old public carry licensing law was unconstitutional under this framework and struck it down.
The shockwaves of Bruen are still being felt around the country and the full consequences of this decision have yet to play out. But this ruling raises the important question: are any of these regulations about who can possess firearms still constitutional?
Like most states, Kentucky has a ban on convicted felons possessing firearms. However, this ban was only enacted in 1974. Kentucky also has a 2010 law making marijuana possession a felony if the person is also in possession of a firearm. To my knowledge, neither of these laws have been directly challenged on the grounds that they violate the Second Amendment of the United States Constitution. Following Bruen, these challenges seem inevitable.
As the Supreme Court has repeatedly held, individual self-defense is a central component of the Second Amendment? Have convicted felons or those who possess marijuana forfeited the right of self-defense? In order to establish that a gun law is constitutional, the government must find a historical analog to the challenged regulation that was in effect at the time the Second Amendment was adopted. The challenge that the government will have is that at the time of the passage of the constitution, there weren’t laws in place banning convicted felons from possessing firearms or banning those who possessed marijuana or other substances from also possessing firearms.
There is a strong argument that these statutes are no longer constitutional under an originalist interpretation of the Second Amendment and I look forward to challenging them in court.